August 2017 might go down as the most memorable week for India’s current generation of lawyers, law students and also, for the citizens of the country. On August 22, 2017 a 5-judge bench of the Supreme Court declared the practice of ‘triple talaq’ as constitutionally invalid, and on August 24, 2017 a 9-judge bench of the Supreme Court held that right to privacy constitutes a fundamental right, falling within the ambit of right to life and personal liberty under Article 21 of the Constitution. The author shall concern himself with the first case i.e. the case of Shayara Bano v. Union of India & Ors., which gave way to the invalidation of the ‘triple talaq’. While the Apex Court must be applauded for what comes as a timely judgment, a judgment which will most certainly help further the progress of the Indian society and perhaps jettison the weight of archaic personal laws, there are certain legal aspects of the judgment which deserve a critical analysis as the author feels that the both the minority and the majority judgments had a creased approach of law to it. No doubt we, as conscious citizens of this country should be celebrating this ‘victory’, but there isn’t equal doubt that we, as conscious members of the legal fraternity owe an unbiased and logical stance when it comes to the law, because the law declared today for the societal good, might turn out to be bad for the legal posterity tomorrow.
The interplay and conflict of personal and constitutional law has been long debated and sometimes decided upon by the Supreme Court. Although India did adopt a secular Constitution (and affirmed this stance in 1976 through the Constitutional 42nd Amendment), its idea of secularism differs greatly from the Western concept (say the American Constitutional jurisprudence in regard to secularism) as India didn’t build for itself a strict Jeffersonian ‘Wall of Separation’ between religion and the state. Religion in India shares a home with the three organs of the State.
The Supreme Court very recently, in its widely hailed judgment, declared the practice of ‘triple talaq’ (talaq-e-bidat) which constitutes one of the three types of talaq (divorce issued by the husband) as invalid. In a very narrowly divided judgment of 3:2, Justice Nariman, Justice Joseph and Justice Lalit concurred and declared that the practice is violative of Article 14 and also unqualified to be within the ambit of Article 25. Chief Justice Khehar and Justice Nazeer dissented and upheld the practice, declaring it to be an essential religious practice and hence falling within the ambit of Article 25 by adopting a most bizarre Constitutional jurisprudence in the route to their conclusions. The focal point of arrival at their respective conclusions (both majority and minority opinions) was the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter, “the Act”) and whether it was codified or un-codified. This was in fact the ‘make it or break it’ route for both opinions, as a codified personal law would be subject to fundamental rights under Part III of the Constitution and hence allow the test of the Act against the same and an un-codified personal law would mean otherwise.
The other big conceptual consideration which stems from the aforementioned analysis was the concept of ‘talaq’ according to Islamic law and the Holy Scriptures and texts and the validity and ‘essentiality’ of the types of divorces that flow from it.
The author has no reservations against the judgment of the court and concurs with the entire population in appreciation of it. However the author also feels that this must not preclude us from questioning the flaws (if any) in the arrival at the judgment.
Facts & Issues
The petitioner Shayara Bano was divorced by her husband Rizwan Ahmed on 10.10.2015 by way of ‘talaq-e-biddat’ (pronouncement of the words ‘talaq, talaq, talaq’) who then approached the Supreme Court by way of writ petition under Article 32 of the Constitution asking the ‘talaq-e-biddat’ to be declared as void ab initio. She also constitutionally challenged the practice, contending that “such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Act, be declared unconstitutional.” She also contended that the practice of ‘talaq-e-biddat’ is invalid and hence not a part of Shariat and that it is violative of the fundamental rights guaranteed to the citizens under Articles 14, 15 and 21 and that it cannot be protected under Articles 25(1), 26(b) and 29 of the Constitution. Her husband the respondent countered her arguments stating otherwise and questioned the maintainability of the writ petition under Article 32 and also chose to accuse her of incomplete and unsatisfactory performance in the marriage.
The issues as were framed by the Hon’ble court were:
Whether the practice of triple talaq has been codified into statutory law by the Act?
If there was such codification, was the practice consistent with the particular contested provisions of the Constitution?
If there was no such codification, whether the practice is a part of the Muslim personal law; and if so, whether to uphold its existing jurisprudence exempting personal law from fundamental rights scrutiny, or to reconsider it?
The Court decided to confine itself to examining ‘triple talaq’ and not polygamy or ‘nikah halala’ or other such practices which grossly violate the equal rights granted to women. The court rued missing the opportunity to address the question of gender inequality issue in both the Shah Bano and Danial Latifi cases.
The guillotine of divorce dangled around the women, perpetually ready to drop at the whims of their husbands who enjoy undisputed power, as was pleaded by Shayara Bano. The petitioner’s plight in this case represents the plight of the 90 million Muslim women, for whom, this case has been rightly glorified as a victory.
Critical Analysis of the Judgment
Triple Talaq: Codified or Un-codified?
Funnily enough, the starting point of the route to the final judgment had a conflicted start, with 3:2 majority ruling that the Act didn’t codify triple talaq. Justice Joseph agreed with Chief Justice Khehar and Justice Nazeer that the Act didn’t codify triple talaq. This was at odds with the base of the majority ruling of Justice Nariman and Justice Lalit who used the codification question to arrive at their final judgement, marking it as its inception. The provision of the Act that was challenged runs thus:
“Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
Chief Justice Khehar writing for himself and Justice Nazeer begins to answer the question with a most bizarre approach of law declaring that:
“‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a fundamental right. The elevation of ‘personal law’ to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, ‘personal law’ of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25.” (pp.205-206, para.146)
It might’ve slipped the Hon’ble Justices’ minds that Article 25 is for the “individual” and “citizens” and not for “personal laws”. It guarantees that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” (Emphasis mine). Such a careless line of argument might lead to severe consequences. As Gautam Bhatia recorded:
“Most of all, what is entirely unacceptable about this proposition is that, as the Chief Justice himself observed, marriage affects an individual’s civil status and civil rights. The effect of holding that “personal laws” are protected under the Constitution’s religious freedom guarantee is to grant to religious bodies the power of determining individuals’ civil status (and their civil rights), without constitutional recourse. This seems to be a negation of the very basic meaning of secularism.”
The Chief Justice held that the Act didn’t codify ‘triple talaq’, declaring that the objective sought to be achieved by the ‘Shariat’ was inter alia to negate the overriding effect on customs and usages over the Muslim ‘personal law’ – ‘Shariat’ and that the Act neither lays down nor declares the Muslim ‘personal law’ – ‘Shariat’, not even, on the questions/subjects covered by the legislation (pp.211-212, para.156).
The argument of the respondent regarding the non-obstante clause of Section 2 of the Act, arguing that it was this that gave an overriding effect to customs and usages contrary to Shariat, formed the point of divergence between the majority and minority opinion. Justice Nariman and Justice Joseph rejected this view holding that to allow a non-obstante clause to determine the interpretation of a Section that was otherwise unambiguous, would amount to “the tail wagging the dog” (p.323, para.16). They cited the case of Aswini Kumar Ghosh v. Arabinda Bose for the same. However, they missed out on citing an even more landmark case regarding the interpretation of non-obstante clause, i.e. the case of Chandravarkar S.R. Rao v. Ashalata S. Guram wherein the Court had held that ‘the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment.’ They hence, didn’t let the non-obstante clause be a hindrance in declaring that the Act did codify ‘triple talaq’. Justice Joseph concurred with Chief Justice Khehar and Justice Nazeer that the Act had not codified talaq saying that “the law that is applicable to Muslims shall be only their personal law namely Shariat. Nothing more, nothing less. It is not a legislation regulating talaq.” (p.275, para.4)
This leads us to the next question of whether such codification does subject the Act to fundamental rights as in the Constitution.
Fundamental Rights Test
State of Bombay v. Narasu Appa Mali is a case that was heavily relied upon by the counsel for the respondent to argue that personal laws are beyond the pale of fundamental rights. Justice Nariman and Justice Lalit were swift to reject this proposition as they had already held the Act to be a statute regulating triple talaq. They hence brought it within the purview of “laws in force” in Article 13(3)(b) attracting Article 13(1) which declares any inconsistency with the provisions of Part III of the Constitution as void. This was a simple and solid line of conclusion, one necessarily following from the other.
Since Justice Khehar and Justice Nazeer had already held that the Act didn’t codify ‘triple talaq’, the question of it being within the purview of Article 13(3)(b) didn’t arise.
However, it is important to note here that this question doesn’t have a clear answer. In fact, there is a 2-1-2 ruling for the same, as Justice Joseph expressed no opinion on the question of whether un-codified personal laws are subject to the Constitution. Justice Joseph adopted an ecclesiastical approach in answering the question about the validity of ‘triple talaq’. He declared that, “in triple talaq, this door (the door of reconciliation) is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” (p.286, para.10). He thereafter, relied primarily on the Shamim Ara case inter alia other important recent judgments (as recent as the 2016 case of Nazeer v. Shemeema), reiterating the law propounded in it and held that “what is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” (p.299, para.26).
What is astonishing is how the dissenting opinion relied on ancient colonial rulings regarding ‘triple talaq’ to come to the conclusion that it is “bad in theology but good in law” while glaringly ignoring recent Supreme Court jurisprudence on the same which has held otherwise.
Application of the Doctrine of Arbitrariness
Regarding the question of inconsistency with Part III of the Constitution, the majority judgment decided to concern itself with ‘triple talaq’ as a rule of law (p.305, para.3), thereby attracting Article 14. It did acknowledge the gender discriminatory nature of ‘triple talaq’, appreciating the Union’s arguments (p.304, para.2), but it decided to not choose that path of reasoning. While this line of reasoning was not logically or legally unsound, the Court missed out on the opportunity of taking the broader view by not interpreting Article 15(1) and thereby not overruling the Narasu Appa Mali case. The Court could’ve made a strong statement against such gender discriminatory religious practices.
As Arghya Sengupta argued, “By holding that the Court has the power to strike down parliamentary legislation as arbitrary under Article 14, it has converted a question of the rights of Muslim women into a contest for one-upmanship with Parliament. This is not what a landmark judgment for gender equality looks like – on the contrary its express silence on the core question of discrimination, speaks louder than its words.”
We must recall that the view of ‘arbitrariness as the antithesis of the rule of law’ was propounded by Justice Bhagwati in the E.P. Royappa case (reaffirmed in A.L. Kalra v. Project & Equipment Corp.) where he had held that “equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.”
This goes against the fundamental understanding of equality, that equality before the law doesn’t necessarily mean that the same law should be made universally applicable to all persons in all circumstances. In such a scenario of equality, the need for affirmative action would be completely defeated. This attitude is a symptom of Albert Dicey’s confusion of the rule of law with the rule of the Court. Using arbitrariness as a sword to scythe through parliamentary legislation, risks the danger of collapsing the whole of the Constitution into one article. Not everything that doesn’t conform to ‘rule of law’ under Article 14 is arbitrary. In fact, the concept of affirmative action stems from Article 15(1) and gender or racial discrimination ought to be tested under that particular Article firstly.
Triple Talaq and Essential Religious Practices
Justice Nariman held that ‘triple talaq’ doesn’t form a part of essential religious practices and hence wouldn’t be protected under Article 25 of the Constitution. He declared: “..it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it.” (p.331, para.25). Therefore, he rejected the practice of ‘triple talaq’ in toto. The dissenting opinion rendered its opinion regarding the same by way of its erstwhile bizarre declaration that ‘personal laws’ are protected under Article 25 and since ‘triple talaq’ was a component of ‘personal law’ of Muslims and has been practised by the Hanafi school for at least 1400 years, therefore it was valid and core to their religion (p.265, para.192). The doctrine of essential religious practices has been thoroughly criticised in the past because of the possibility of a secular court’s misjudgement regarding ecclesiastical cases and the author agrees with the dissenting opinion’s remark that ‘religion is a matter of faith, and not of logic’ (p.265, para.193). Ironically, the dissenting opinion in its very preceding opinion held ‘triple talaq’ to be a practice core to the Hanafi school of Islam while declaring in the succeeding paragraph that ‘it is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion (p. 265, para. 193). Their stance on the same could’ve been better clarified.
In a country where, as Dr. B.R. Ambedkar said that “there is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill”, the Apex Court has consistently been usurping its powers in complete derogation of the constitutional mandate and vision. Two early cases, Commissioner, Hindu Religious Endowments v. Lakshmindra(wherein the Court gave the widest interpretation to ‘religion’) and Ratilal Panachand Gandhi v. State of Bombay must be recalled which had tried to ascertain the essentiality of certain religious practices by holding that only ‘outward acts’ in pursuance of a religious belief could be considered as essential religious practice. It was also in the same case of Ratilal that the Supreme Court had held that “no outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.” But they still went on to lay down their test of ‘outward acts in pursuance of a religious belief’, which also contained restrictions as not to be against public order, health or morals (reiterated in the landmark case of Qureshi v. State of Bihar). To follow this jurisprudence would mean that Justice Joseph was right in exploring ‘triple talaq’ as against constitutional morality. The author is however of the view that such an accommodation of a doctrine in important ecclesiastical cases leaves less breathing space for religion.
The judgment must be hailed for the societal change that it will trigger. Few critics have been harsh against it and have prematurely concluded that this won’t change anything but the author holds a contrary view. The judiciary was obliged to play its role in a battle against gender discrimination, and so is the state. Although it didn’t do so (legally), missing out on various opportunities to take a wider view of the issue and overrule erstwhile bad laws such as Narasu Appa Mali, and also shying away from tackling the primary aspect of this practice, i.e. gender discrimination, this judgment shines like the bright light at the end of the tunnel for the 90 million Muslim women in India, rescuing them from the dark and desolate valleys of gender discrimination.
The author would still maintain his criticism against the certain flawed routes adopted by both the majority and the minority opinions. However, this shouldn’t preclude us from celebrating the victory of Muslim women who have been for very long oppressed through such heinous and unreasonable practices.
In certain parts, the Court could’ve adopted an approach according to the stricture of law, and in certain other parts it was felt that such rigidity would only be robbing the legal posterity of a sound jurisprudence. Certain important questions like whether un-codified personal laws are subject to the provisions of the Constitution were expected to be clarified upon.
But the judgement comes as a timely declaration against religious excesses (a pulverisation shouldn’t be expected), and the Shakespearean adage ‘all’s well that ends well’ comes to the mind in drawing final remarks about this judgment.
 Ahmedabad St. Xavier’s College v. State of Gujarat,  1 SCR 173.
 Mohd. Ahmed Khan v. Shah Bano Begum & Ors.,  3 SCR 844.
 Danial Latafi & Anr. v. Union of India,  Suppl. 3 SCR 419.
Amrit Dhillon, India court bans Islamic instant divorce in huge win for women’s rights, The Guardian, (August 22, 2017).
 The Muslim Personal Law (Shariat) Application Act, 1937, § 2, No. 26, Acts of Parliament, 1937 (India).
 INDIA Const. art.25
  SCR 1.
  3 SCR 866.
  53 BOMLR 779.
 Supra note at 9.
 Shamim Ara v. State of U.P., AIR 2002 SC 3551.
  2 KHC 18.
 Aditya A.K., “Bad in Theology, Good in Law” the Minority Decision in Triple Talaq Case, Bar & Bench, August 22, 2017.
 Arghya Sengupta, Let’s talk about discrimination: Supreme Court outlawing triple talaq was no surprise, it should have gone further, Times of India, August 24, 2017.
 E. P. Royappa v. State Of Tamil Nadu & Anr.  2 SCR 348.
  3 SCC 316.
 Subrata Roy Chowdhury, Equality before the Law in India, 19 CLJ 223, 223-38 (1961).
 Rajeev Bhargava, Politics & Ethics of the Indian Constitution 267-294(Oxford University Press 2009).
 Timothy A. O. Endicott, The Impossibility of the Rule of Law, 19 Oxford J. Legal Studies 1, 1-18 (1999).
 Supra note at 18.
 7, Constituent Assembly Of India Debates 759 (Lok Sabha Secretariat 1955).
  SCR 1005.
  SCR 1035.
  SCR 629.